Remembering Abel Nathan Willing (1856-1925)

The fact that the American international law expert Abel Nathan Willing fell completely in oblivion was not only due to the legal and political circumstances of the time. His personality, which is only inadequately characterized by the label ‘difficult’, also contributed to turning the intellectually talented young man into an outsider without an academic degree over the course of his life. Ultimately, he eked out a quiet and almost invisible existence at the end of his life. One is reminded of a sentence by Immanuel Kant: ‘[…] from such crooked wood as man is made of, nothing can be made quite straight’ (Kant 1784, 397, English translation 1824, 388). Nevertheless, there are good reasons to remember him today – 1 April 1925 was the anniversary of his death – and to honour his contribution to modern thinking on international law: Abel Willing was a pioneer of the doctrine which, presumably to his own surprise, was eventually named after him – albeit as a negation.

Fragments of a Biography

The fact that Willing’s name is not widely known is evident from any glance at the relevant academic works: there is not (yet) a single biographical article about him, neither in the two editions of the Dictionary of International Law (1924-1929; 1960-1962), nor a single mention in the later Max Planck Encyclopedia of Public International Law (MPEPIL). Other legal encyclopaedias from the 20th century, such as the popular work by Michael Stolleis (1995, 2nd edition 2001), do not list him as a relevant jurist either. A search for traces of his life can therefore only start from fragments of primary sources and, in turn, be a stimulus for further research into him. It may thus be ultimately possible to include him in the canon of legal scholars, presumably those of the third or fourth rank. But perhaps the criteria for such canonisation and hierarchisation are questionable and outdated in the age of global and post-colonial international law?

Possibly a portrait of Abel Willing/Welling (*ca 1800), taken ca. 1850

Willing was a US citizen at birth, probably born in New York in 1856. His father was Thomas Willing (*1837), who named his first-born son Abel Willing (sometimes also spelt Welling) after his own father. The older Abel Willing was also born in New York around 1800 (first hit in the link provided, details behind the paywall). These dates are the only clues that can be determined about his family from the New York census of 1855. A little more is known about Abel Willing himself. Yale University has an extensive but not fully digitized archive, which also contains traces of Willing. He began to study law at Yale College, where he met Theodore Dwight Woolsey (1801-1889). Woolsey taught international law on the basis of his ‘Introduction to the study of International Law’, first published in 1860 (6th and last edition in 1891). He was president of Yale for 25 years and had studied in Leipzig, Bonn and Berlin. His textbook on international law was a fruit of the tradition of ‘European international law’ typical of the time. In it, the history and validity of norms are ultimately traced back to Christianity (Woolsey, § 5) and the values and history of Europe are appropriated by imitating North America.

Dropped Out of Law School

The student Willing did not come from an academic household. Presumably, he could not identify with the neo-aristocratic habitus of his fellow students at this East Coast institution, which is still renowned today. Personal conflicts became inevitable. He transferred his aversion to the content of his teacher Woolsey’s lessons: on the one hand, he had some sympathies for the narrative of a global legal order emanating from the Atlantic world, but on the other, the young New Yorker felt that it contained a political arrogance that repelled him. In retrospect, one scene – if this is how it actually happened – reads of an almost prophetic nature: in one of his lectures, Woolsey is said to have commented on a supposedly incorrect answer by Willing on the right to self-defense with the sarcastic question ‘Are you unable or unwilling?’. Deeply offended by this attack on his intellectual honour and by the way his name was played with, Willing left Yale without a degree and worked as an assistant teacher and casual labourer. The exact circumstances under which he left the USA and travelled to Southeast Asia cannot yet be reconstructed. However, Willing observed the spread of colonialism here and seems to have had brief personal contact with Gustave Rolin-Jaequemyns. Rolin-Jaequemyns is known to have become an advisor to King Chulalongkorn of Siam (Rama V) in 1892 (Saint-Hubert 2012) and was presumably an admired role model for Willing. In the 1890s, Willing continued to travel the Southeast Asian region on his own, moving further and further away from the coast. He seems to have settled in Punakha in the eastern Himalayas around 1897.

Gustave Rolin-Jacquemyns in traditional Thai clothing © wikipedia

A Power Play in the Eastern Himalayas

In the Himalayan region, a similar power play took place as in Siam: the local rulers of Bhutan had successfully fended off Tibetan invaders for centuries (Phuntsho 2018, 247). However, the British East India Company (EIC) gained a foothold in the Indian subcontinent, expanded rapidly, soon controlled Bengal and its local principalities (Saksena 2023), and began to extend its interests to the even higher territory (Phuntsho, 347ff). The result was an almost century-long border conflict with Bhutan from 1772 (Bhutanese Treaty of Peace with the British East India Company on April 25, 1774, p.177 ff in the link). The EIC brought border passes and border areas under its control. Bhutan now bordered British India and the British protectorate of Cooch Behar, followed by the annexation of Assam (1826), which was also on Bhutan’s southern border. In this situation, Bhutan had to fear the loss of its previously successfully defended independence. There had already been a diplomatic scandal in 1864 in which British negotiators had been ceremonially humiliated: at an audience, Ashley Eden, British envoy to Bhutan since 1863, was verbally and physically assaulted, his draft treaty demonstratively crumpled up (Phuntsho, 455).

Securing State Sovereignty Through Cunning International Law Policy

Willing was fully aware from his aborted studies of international law that this – the highly symbolic mistreatment of a diplomatic negotiator – could be the pretext and precursor for a colonial yoke of Bhutan under imperial Britain. Armed conflicts broke out as early as 1864, in which Bhutan fared surprisingly well. Nevertheless, on 11 November 1865, it was forced to sign the Treaty of Sinchula (130 CTS 76), through which Great Britain secured influence in domestic politics. In the following decades, Bhutan observed escalations in power politics between its two neighbours Tibet and British India. Willing seems to have had a deep-seated aversion to such power politics using the means of international law. Due to the lack of corresponding ego documents, it remains to be seen what the reasons for this attitude were. In any case, it prompted him to become politically active in an advisory capacity without having any mandate to do so.

The Mimicry of International Law

Willing apparently made contact with the local Wangchuk dynasty and drew their attention to the danger of an escalation that could lead to the subjugation of the country. Bhutan must not only be able to defend itself militarily, but also learn to speak the grammar of European international law and Western diplomacy. This appropriation (‘mimicry’) of international law, in which ‘imitation, submission and resistance’ are mixed (Keller-Kemmerer 2018, 58), was all the more necessary as the Eurocentric conviction prevailed in the ‘West’ that current international law was not geographically universal, whereby he could refer to his teacher Woolsey: ‘… there is no such law recognized as yet through all nations. Neither have the more civilized states of the East agreed with those of Europe …’ (Woolsey, § 4). Willing convinced the local governor Ugyen Wangchuk of this and seems to have jokingly referred to his own name: Just as he himself was willing and able – to give such advice, the country must also adapt its foreign policy to the standards of European international law and, moreover, stage its sovereignty as a defense! For the less civilized states, to which Woolsey also counted those of the Far East (§ 4, see above), would allegedly know no legal relations, but only force and political expediency: ‘In general, towards such nations, they have acted on the principle that there is no common bond of obligation between them and the other party, observing as much of international law as suited their policy or sense of right at the time.’ (Woolsey, § 5). In other words, sovereignty in international law has its performative elements; it must be demonstrated in practice (Vec 2023).

Based on Willing’s advice, a first step was taken in domestic politics by claiming a higher title of ruler: Ugyen Wangchuk established a hereditary dynasty and claimed the maharajah dignity, which later became internationally acknowledged as a royal dignity. Bhutan was thus transformed into an absolutist monarchy (Macalister-Smith, 2008, para 5). This was internationally recognized and, in combination with other factors, averted the danger of British colonialism through direct rule or protectorate relations over Bhutan. In continuation of the Treaty of Sinchula, Bhutan became a ‘buffer zone’ between rivals Tibet and Britain (Saksena 2023, 201).

However, Bhutan had to make new political and legal concessions. These were reflected in the Treaty of Punakha of 8 January 1910 (210 CTS 204, also here; see Kaul 2022), which allowed Britain to claim control over its foreign policy (Macalister-Smith, 2008, para 6). This course-setting would remain valid for decades and would not be removed until after the Second World War. Willing had played a useful role but was not content with this and sought more influence at court. This was also denied to him due to his personally brusque manner, which caused him to leave politics.

Another Rift

Although Willing remained in the country, he withdrew completely from his status as an advisor (which had never been official anyway) and opened a teahouse with accommodation on the most important east-west route near Trongsa (historical seat of the Wangchuk dynasty). Because he had achieved a prominent status as an immigrant foreigner through his support, this teahouse bore his name for several years and certainly did not enable him to lead a comfortable, but perhaps carefree life. In the last years of his life, his marriage seems to have suffered; his (younger) Bhutanese wife took over the business and cancelled his first name. Malicious tongues claim that she smugly justified this by saying that he was only ‘willing’ but not ‘able’. Because this teahouse is located by a high waterfall, it remained an institution even after the childless marriage and after Willing’s death 100 years ago, on 1 April 1925, and is still there today: Willing Waterfall Café (the website links its name to the national symbol Druk, the mythological thunder dragon). A teaching assignment brought me to the Faculty of Law and the café in February and March 2025 – and that anecdote put me on Willing’s trail. It is these moments in the life of a legal historian that show how much unexplored the world of international law still has to offer on the one hand and what role chance also plays on the other.

Willing Waterfall Cafe, February 2025 © Miloš Vec

The diplomatically and politically successful move of keeping a small country that was actually militarily inferior autonomous against both powerful Asian neighbours and Western colonial powers through cunning international law policy secured Willing a local memory as its advisor, but this soon faded. Curiously enough, the pair formula ‘unable and unwilling’ subsequently became the starting point for discussions in international law, which also concerned the relationship between large powers and small political entities. It is a literal negation of Abel Willing’s original phrase, according to which Bhutan should be ‘willing and able’ to defend itself and thus performatively express its own sovereignty. This idea was quickly taken up by the international law community, although it was ultimately turned into its opposite: small states were sometimes unable to stand up for their sovereignty, they were (unfortunately) ‘unable and unwilling’ in the event of a political crisis. Even in the League of Nations era, less powerful states were expected to tolerate external military interventions in favour of collective security. This reception must have seemed like a mockery to Willing, especially as it boasted that it was even allowed to use his middle name (Nathan): Abel ‘N’ (=and) Willing became ‘unable and unwilling’.

Birth of a Doctrine from Forgotten Origins

In recent decades, this discussion has been transferred to the issue of combating global terrorism: are countries allowed to intervene militarily in those states that are unable and unwilling to fight terrorism emanating from their soil, and without the consent of the government? The keyword is the right of self-defense against non-state actors (Deeks 2012; Bajrami 2022). It is not surprising that authors from the Global South in particular see neo-colonial ambitions in this and strictly reject the idea (Ahmed 2013). The legal debate surrounding this doctrine emphasizes the great importance of the prohibition of the use of force in the UN Charter and points out that the validity of the right of self-defense in Article 51 could at best be a future international law, not yet a positively applicable one (Bajrami 2022, 84; Starski 2015, 496; Starski 2017, 15, 62; Starski 2021, 771; Sjöstedt 2017). This line of thought also harbours the danger of a relapse into colonial legal thinking, in which the inherently sovereign status of states is relativized by functionalist arguments (Starski 2021, 772, 775). In this way, the ‘standard of civilization’ from the 19th century returns to international law via the unable and unwilling doctrine (Starski 2021, 646). Interestingly, the anthropomorphic dimensions of this doctrine are strongly emphasized: A state that is ‘unable and unwilling’ finds its parallel in the voluntaristic element of a natural legal person (Starski 2021, 776).

It is therefore even more regrettable, from the perspective of the History of International Law today, that nowhere in the entire literature on international law are there any references to the actual natural person to whom all this can be attributed. Abel Willing was certainly not a political hero who deserves blind reverence. But a complete silence on the part of the academic community of international law scholars also seems out of date in a world that otherwise honours legal pioneers in the fight against colonialism and imperialism.

Paulina Starski, The Unwilling or Unable State as a Challenge to International Law, 2021 (habilitation thesis, unpublished, on file with the author).

The author thanks Theresa Schüring for her assistance in the early stages of the translation.